People v Lopez-Mendoza
2019 NY Slip Op 04759 [33 NY3d 565]
Decided on June 13, 2019
Issue:
Defendant Claims Ineffective Assistance and Sixth Amendment Violations
Whether defendant Lopez-Mendoza was 1) denied effective assistance of counsel when his attorney failed to review or understand the significance of surveillance video evidence and 2) whether the introduction of DNA evidence violated his Sixth Amendment rights, as the analyst who testified at trial did not generate the profile taken from his buccal swab.
Holding:
Record Insufficient to Show Ineffective Assistance, Sixth Amendment Violation Harmless
The NY Court of Appeals held: 1) the defendant did not carry the burden of proving ineffective assistance of counsel based on the record and 2) the introduction of the DNA evidence was harmless.
Facts:
A young couple returned to their Manhattan hotel room at 2:37 am and, too inebriated to unlock their own door, defendant Lopez-Mendoza, a hotel employee, opened it for them using one of their key cards. According to the couple, they both passed out on the bed. The victim says she was awakened by a person having sexual contact with her, and at first she thought it was her boyfriend and she stopped the encounter. She was again awakened during the act and realized her boyfriend was still sleeping next to her. She began screaming, woke her boyfriend, and the figure scuttled out of the room. The couple went into the hallway and saw no one. The victim began pounding on the door of the room next to theirs, and the hotel sent a security guard to respond to the noise complaints. Lopez-Mendoza appeared to assist the guard, and the victim identified him as her attacker. The hotel personnel and the victim called 911, and the police responded.
When first interviewed by police, defendant said he helped the couple to enter their room and no more. The officers left, and defendant continued his shift. Police returned to obtain his work uniform, which he had placed in the laundry bin, and asked him to “tell the truth.” Defendant told the officer that “he had sex with her but he didn’t force himself on her.” Police arrested him, and he later testified voluntarily before a grand jury in great detail as to the events, saying that to the woman’s insistence, they had consensual sex on the bed while the boyfriend lay sleeping.
After the grand jury testimony and before the trial, the People delivered to defense counsel a large volume of hotel surveillance video that demonstrated the falsity of defendant’s grand jury testimony. The video, along with the hotel computer records, shows the couple entering the lobby at 2:37 am, the room was unlocked at 2:38 am, and defendant exited the basement elevator at 2:40 am. Defendant exited through the employee’s entrance, returned to the lobby at 2:42 am to get an umbrella from the front desk, then exited the hotel. Defendant then returned through the employee entrance at 3:09 am, where he went to the men’s locker room and entered the service elevator at 3:11 am. At 3:38 am, defendant again exited the service elevator, carrying a large garbage bag to the laundry area.
DNA from saliva of the victim’s breast matched defendant’s, but the vulva swab did not contain his DNA. Lopez-Mendoza was charged with rape in the first degree, a criminal sexual act in the first degree, and two counts of sexual abuse in the first degree on the theory that the victim was too physically helpless to consent. In his opening, despite video evidence, defense counsel reiterated the timeline defendant had given the grand jury, advising the jury that it would “learn from the defendant that [the victim] appeared to be in an amorous mood…starts suggesting to him that he should come into the room…and starts taking some clothes off.” The People introduced the video that undermined defendant’s version of events, and the jury convicted defendant of first-degree rape. Defendant claims ineffective assistance of counsel based on counsel’s not reviewing the video evidence or not understanding its import.
Analysis:
Ineffective Assistance of Counsel: Record Viewed in its Totality
The core of an ineffective assistance inquiry is whether defendant was provided meaningful representation. Defendant argues that his attorney’s opening statement undermined his case by promising defendant would take the stand, making opening arguments contradicted by the video evidence, then failing to call defendant to the stand and closing with a different version of events. The failure to review the video evidence or understand its importance, defendant argues, proved disastrous.
Defendant “bears the ultimate burden of showing…the absence of strategic or other legitimate explanations for counsel’s challenged actions” (People v Clark, 28 NY3d, 556, 563 [2016]). The Court of Appeals held that the limited record in this case is insufficient to make that showing. The record does not contain confirmation or denial of the People’s implied accusation that defense counsel did not watch the video. Defense counsel objected to the video, and a discussion ensued wherein counsel said that he received “like a hundred gigabytes of video, and I ask[ed] for the relevant information.” The court asked counsel several times if he received the video, and he finally confirmed that he had. The People stated that “he should have watched the videos…I told him that I saw it, that his grand jury testimony was not accurate, was not truthful because we saw the defendant in these other areas when he was supposedly having sex with the victim.”
The decision not to call a witness after promising to do so does not establish ineffective assistance of counsel as a matter of law (People v Benevento, 91 NY2d 708, 714-715 [1998]). Furthermore, the jury never learned of defendant’s grand jury testimony and he was never subjected to cross-examination with it. Counsel elicited testimony from the EMT that the victim stated the assault occurred “moments” after the victim entered her hotel room, which was inconsistent with the People’s theory that the assault happened between 3:11 and 3:38 am. The court also advised the jury that they could not hold defendant’s refusal to testify against him, that “no adverse [inference] will be taken.”
CPL 440.10 is Appropriate Litigation Procedure
“The lack of an adequate record bars review on direct appeal…wherever the record falls short of establishing conclusively the merit of the defendant’s claim” (People v McLean, 15 NY3d 117, 121 [2010]). It is “essential…that an appellate attack on the effectiveness of counsel be bottomed by an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10” (People v Brown, 45 NY2d 852, 853-854 [1978]). Such a proceeding, the Court explained, could answer the questions left open by the record, including whether counsel reviewed the video evidence at all, or whether he understood the evidence was “flatly inconsistent” with his opening argument.
Sixth Amendment Violation Harmless
The Court of Appeals held that because the issue in this case was whether the victim consented to the sexual contact with the defendant, rather than identification, the DNA evidence was not determinative. Any error in admitting it was harmless, and the order of the Appellate Division was affirmed.